Abraham Mang'ola vs Republic (HC Criminal Appeal No. 203 of 1990) [1991] TZHC 2415 (28 August 1991)

• E.N. MUNU0 1 J. IN THE HIGH COURT OF TANZANIA AT. ARUSHA. ' APPELLATE JURISDICTION · EIGH COURT CJIMINAL 4PPEAL NO. 203/1990 ORIGINAL caIMINAL CASE NO. 165 OF 1986 OF TEE DISTRICT COURT OF BA13ATI DISTIRCT AT :S.iUlATI • BJ:ilJ.i'ORE P.E. MLAY SDM AHAM 1'-'IANG t OLA •••• ~ ••••••••• , • , ._ • , • • • • APPELLANT · . VERSUS · -. THE R1!1PUJ3LI C •••• • • '• •••• • •• • • • • • •• • • • .• • •• •· RESPONDENT JUDGEMENT This is a.n appeal against the decision :i.h'_,H.ana.ng District Court Criminal ' Case n<h. 165 of 1988 in which 14 accused persons were :jointlycharged with t cattle theft in 'that on the 8/8/1986 at about. l: .3() hours at Gitanwa.si Village within Hanang District in Arusha Region, the a.ocse• stole 290 head.of cattle valed at shs, 2912 1 000/=, six onkeys valued at shs. 3,600/=, total valued at sha. 2,915,600/= tpe prqperly of Ginana. .Lagwe. ,. ' The complaiant, ·p.w.4 Ginama La.gwe deposed that on the material afternoon ' ' /••1 • ...... , his 290 head of cattle and six donkeys were stolen by oattle rustlen ·.from the ••• • ! . ... • • ·grazing. ground at their vil_e. P.W.I Jongi Ginama, the son ·of P.-v1.4 was . . : . . , . herding the ··cattle at that time, He sated t_hat:. _gangate of about 20 cattle rustlers invaded the'grwnz ground at about 3.00 p.m~ on the material day •. • ~ • • • • • ? • ther~_by stealing his fath,'s her.d of 290 head .o,f cattle ap.d 6 donkeys. P.W.I . ran .aw and raised an: alarm whereby P. iv.2 Suba.ida Munyodi4a, P.W.3 Gitele Ambadi' and ·other villagers respo~ded and joined ~ '·1n tracking· down tne cattle rustlers but upott reaching Si,nga Village, the ·village Chairman, accused . no.6 ~lia Mussa intercepted ·them d-ordered them to go.a.ok. By so.doing the cattle rustlers,_vanihed with the stolen cattle. P.W.I reported the· matter to hi-· ~at her who in turn contacted the police for ·turther action; ••••••••••••• /2

P.v~.I, P.w.2, an~ P.W. 3 i,entified accused'n.o:. _.14 Shatt,;ni Hamisi who was armed with a gun, accused no. 7 Maulid Munna who was ed l'titll boJf's and arrows and accused.no. 6 Elia ssa who inter?etd}.he at Singa Village and prevented them.from further trekking their stolen cattle. In all 14-s1:15pects were arrested and charged wit~ the presen;t offence. -;· .. Each of th~ 14 accused persons pleaded not guilty to the charge, Aocuaad ~ . . ' no.S and 10 jumped bail so they were· ,tr:ted ·and convicted in absel:).tia under section 226 of the'Crimial Procduri Act~ 1985. The other accused persons dl any involvement in the cattle theft in question. The trial magistrate .convicted:- ' Accused No.1 lul.oadhani Mohamed; Accused No. 5 Jeremia Madaho; ' Accused No. 6 Elia Mussar Accused No. 7 Mau:iid Munna; Acused No. •8 Ram.Jihtl.ni Himba; Accused· No·.· 9 Ab;iric.1m Mang' ola; Accusd no.·10:Moha.ined Saidi; · Accused·No •. 13 Serige'Ngaida; and Accused No~ 14 Shabani Hn.misi,.. -· . The accused were sentenced to .the rninimum sentence.of'five years imprisonment 'for cttle· theft 6ffences. Only-,accused·no. 9'1i.braham 1'1angola is appealing agai'nst the conviction. sentence<and compensation order for tb.e unrecovered ( 287 head of cattle and 5 donkeys. . .. ·, Mr .. l'Jglo. learned advocat.e fq'r he appellant submitted that the g1Ul t of the appellant was-not proved:beyo_nd al.1 reaeonable doubt. He observed that only·accused no.12.implicated the. appella.?'.lt so it was unsaf to convict the appellton the corroborated evidence of. his co-accused, accus~~ no, 12. Mr. Mwaimu, learn.State Attorney· did not support the cinviction on the ground that the uncornoborated evidence of accused rio.i2, cannot in law, be . . the basis for onvicting his co-accusedo Mr Mwaimu-opiood that in fact the . . . trial magistrate ought to have ruled that the 9th accused had no case to ered and thereby acqui-tf ·hlm under section 230 of he Criminal Procedure Act • . . .. . . , . , '" '" ' ; -.-¼M·+,f i' -«t •. 1.:i«1 :--~~ ::1W,: -;-~~,-.:tt..~-~~..

.· '·. . ' . , . . . The appellant was implicated by accused no. 12 who stated that had hired to him three donkeys, one of which was siispected to be the among the;, ·· compla.ina.rit • a six donkeys~ The suspected donl_{ey was arrested at Singida but was not tendered in court as an exhibit o it was also not identified by the interested parties. More impOrtantly the conviction against the appellant must be faulted unde section 33(2) of the Evidence Act, 1967 which states:- 11 33 (2) Not withstanding subseetion (1), a eonvietion of an accused person shall not be based soley on a confession by a co-accusedl 11 ." The implicating defenoe of §ccused no.12 cannot therefore solely sustain ·a 1 conviction against the appellant. In the present appeal there is no independet , .. evidence to corrobora.te the implicating statement of aecused no, 12 aga,inst the.:.-'.' appellant so the appellant was wrongfully convicted. The same is quashed and set aside. Accordingly the appeal is allowedo The appellant Abrahama Mn.ngola is be set free forthwith unless otherwise held for other lawul cause. It is So Ordered. At Arusha this 28/8/1991. Appellaj:-1 Mr. Nga.lo for E.N. MUNUO JUDGE 28/8/1991 Respondenj,:• Mrs• Mary Lyimo, State Attorney. I ~~: JUDGE 28/8/1991.